Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
757182 Ontario Limited v Agricorp
757182 Ontario Limited v Agricorp 2000 ONAFRAAT 15
STATUTE:
Crop Insurance Act
HEARING:
July 25, 2000
August 2, 2000
2000-15
NEUTRAL CITATION:
2000 ONAFRAAT 15
757182 Ontario Limited v Agricorp
IN THE MATTER OF Ontario Regulation 140/96 under the Crop Insurance Act (Ontario) 1996, S.O. 1996, C. 17, Schedule C.
AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by 757182 Ontario Limited, from the decision of AGRICORP to deny a claim concerning the 1993 corn crop.
Before: John Taylor, Vice- Chair
Appearances:
Mr. Don Good, counsel to the appellant, 757182 Ontario Limited.
Mr. Peter Wechselmann, counsel to the respondent, AGRICORP.
DECISION OF THE BOARD
This motion was heard in Guelph, Ontario on Tuesday July 25, 2000, as a pre-hearing motion to determine if the appeal of 757182 Ontario Limited, from the decision of AGRICORP to deny a claim concerning the 1993 corn crop should proceed to a hearing before the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal). AGRICORP brought a motion to dismiss the appeal on the grounds that the appeal was not filed within the statutory time limit. At the hearing, AGRICORP added a second motion that if the Tribunal finds that the appeal was filed within the statutory time limit, then the Tribunal should find that the appeal has been abandoned as evidenced by the passage of time. The purpose of this hearing is to decide these preliminary matters. In conducting the hearing, AGRICORP was the applicant in the matter and 757182 Ontario Limited was the respondent, but is sometimes called herein the “appellant”.
The applicable regulation is Regulation 215 RRO 1990.
1(1) The Crop Insurance Arbitration Board is continued.
1(2) It shall consist of one or more members appointed by the Lieutenant Governor in Council.
1(3) The Board has exclusive jurisdiction to hear and determine disputes between the Commission and an insured person arising out of the adjustment of a loss under a contract of insurance.
1(4) If the Commission and an insured person have failed to settle any dispute arising out of the adjustment of a loss under a contract of insurance and all requirements respecting the filing of proof of loss forms have been complied with, the Commission or the insured person may serve, by prepaid first class mail, notice of arbitration on the other of them, and upon the Board, stating that the matter in dispute is to be determined by arbitration.
1(5) A notice of arbitration referred to in section 4 shall be filed within one year of the day of filing of the proof of loss.
The Background
At the time the matter arose, the appeal body was known as the Crop Insurance Arbitration Board. Since that time, the duties of this board were transferred to the Crop Insurance Appeal Board (in 1996) and from there to the Agriculture, Food and Rural Affairs Appeal Tribunal (in 1999). In this decision the word “Tribunal” is used to identify the appeal body that was named in the regulation at the relevant time that action took place on this appeal.
At the time the matter arose, crop insurance was administered by the Crop Insurance Branch of the Ministry of Agriculture, Food and Rural Affairs under the direction of the Crop Insurance Commission of Ontario. Responsibility for administration of crop insurance was transferred to AGRICORP in 1998. In this decision the word AGRICORP is used to identify the Crop Insurance Branch or AGRICORP taken in context of the time that action took place on this appeal.
The appellant company is controlled by Orland Dippel. In this decision the Tribunal will use “Orland Dippel” interchangeably with “757182 Ontario Limited” and “the appellant”.
The appellant enrolled 230 acres of corn crop with AGRICORP in 1993. The appellant completed a yield report and filed it with AGRICORP in February 1994 followed by a “Proof of Loss” form completed February 18, 1994. AGRICORP calculated a claim of $11,343.65.
Before making a payment, AGRICORP staff visited the appellant’s farm to audit the fields, yields, etc. The audit revealed intermingling of yield between Orland Dippel, Stephen Dippel, the son of Orland Dippel and Elmer Dippel, the brother of Orland Dippel. Stephen Dippel was uninsured while Elmer Dippel had a contract of insurance for corn. As a result of the audit, the contracts were combined and liability under the contract was denied.
Elmer Dippel applied for a review of this decision and was eventually granted a separate contract.
Orland and Stephen Dippel also requested AGRICORP to reconsider their position and if it refused their claim, then to consider a refund of the premium. AGRICORP denied separate contracts as well as denying liability, as it was not possible to determine the yield. This information was sent to the appellant by a letter dated April 7, 1995.
On July 4, 1995, Freida Dippel, on behalf of Orland Dippel, requested a refund of the premium paid. AGRICORP denied a refund in a letter to Orland and Stephen Dippel dated August 24, 1995.
On April 1, 1996, Robert Garcia, legal counsel for the Dippels demanded a refund of the premium. On April 9, 1996, Mr. Graham, counsel to AGRICORP, wrote to Mr. Garcia indicating in general terms the appeal procedures. On April 26, 1996, Mr. Graham wrote Mr. Garcia saying that “the fact that the indemnity has been denied on the basis of breaches of policy conditions by the insured does not entitle the insured to claim that the insurer was not at risk or that the premium was not earned”. Mr. Garcia commenced a small claims court action July 26, 1996 seeking repayment of the premium paid by the appellant. This case was set to be heard March 5, 1997. Before the hearing commenced the matter was withdrawn and by a letter dated March 10, 1997, Mr. Good appealed to the Tribunal. In a letter dated March 27, 1997, Mr. Good argued that the Tribunal should hear the appeal on the basis of “officially induced error”. The Tribunal set May 7, 1997 to hear preliminary arguments on the issue of whether the appeal was filed within the time limits. This preliminary hearing did not take place due to time constraints on that date.
On May 13, 1997, Mr. Graham wrote to Mr. Good in an attempt to get an agreement on the facts and to indicate AGRICORP’s position on the late filing of the appeal. No response to this letter was filed with the Tribunal.
The Tribunal sent a letter to Mr. Good in 2000 indicating that since there was no action on the file, the appeal was considered to be abandoned. Mr. Good responded that the file remained active and asked for a hearing date to be set. AGRICORP objected to a hearing raising the preliminary issue that the appeal was filed too late and brought a motion to the Tribunal asking for this issue to be determined in advance of a hearing into the merits of the appeal.
The Issue
There are two issues before the Tribunal at this time:
Was the appeal filed on March 10, 1997 filed within the statutory time limits?
If the appeal was filed within the statutory time limits has the appeal effectively been abandoned?
The Evidence and the Findings
Peter Wechselmann, counsel to AGRICORP argued the motion on behalf of AGRICORP. Mr. Wechselmann filed with the Tribunal a series of documents detailing the significant events of the case including, among other things:
The Proof of Loss form.
The minutes of the meetings of the Crop Insurance Committee when it was deciding whether to combine the Dippel contracts.
The letter on behalf of Orland Dippel asking for a refund of the premium.
The decision letters from the Crop Insurance Committee.
Mr. Wechselmann argued that the documents filed show that Mr. Dippel was not misled by the Crop Insurance Committee correspondence. Because he had already experienced an appeal to the Tribunal over his 1992 corn crop, he was aware and knew the procedure to be followed. Further, he was represented at all material times by a solicitor. Until March 1997, there was no request to appeal the adjustment of the loss under the contract. The only request that was made to AGRICORP was for a refund of premium – a request that the Tribunal does not have jurisdiction to hear. The Crop Insurance Committee in its April 7, 1995 decision letter clearly states that the contracts were combined and liability under the contracts was denied. This could be the basis of an appeal to the Tribunal, but such an appeal was not filed until March 1997.
Mr. Wechselmann told the Tribunal that despite the clear wording of the regulation, AGRICORP took the position that the time limit for filing a notice of appeal should run from the time the insured received the decision of AGRICORP. Therefore, in this case, had an appeal been filed by April 7, 1996 no objection to late filing of an appeal would have been made. However, there is no authority to extend this informal arrangement to March 1997. He pointed out that Mr. Graham, in his letters of April 9 and 26, 1996 indicated to Mr. Garcia, counsel to the appellant, that a dispute on an adjustment of loss must be resolved by arbitration in accordance with the regulations. The response to this position was that a Small Claims Court action was commenced on July 26, 1996.
Mr. Wechselmann said that Mr. Good took over management of the matter on January 13, 1997. Mr. Good continued the court action to get a premium refund. He made no claim of officially induced error at that time. If something was wrong, he should have made this claim during that five-month period prior to the court date in March 1997. After the court action was dealt with, Mr. Good then claimed that the appellant was informed that the contract was cancelled and that the appellant was induced to let the time limit pass. Mr. Wechselmann argued that there is no proof of officially induced error. Mr. Dippel and his solicitors chose to delay to try to get the premium back.
Mr. Wechselmann objected to the affidavit of Orland Dippel filed by Mr. Good. He pointed out that the affidavit was five years old, was not accompanied by supporting documents and was inconsistent within itself. He noticed that the first item states that Mr. Dippel was advised by the Crop Insurance Committee that no contract of insurance existed while the fourth item says that the Crop Insurance Committee agreed that a contract existed.
Mr. Good agreed that the regulation in effect in 1993, when the crop was damaged, stated that the notice of appeal had to be filed within 1 year of the proof of loss and that did not happen.
Mr. Good argued that the Crop Insurance Committee, by the language of its decision letter, caused confusion to Mr. Dippel. The decision says, “there was a contract”, by using the past tense, Mr. Dippel understood that the contract had been cancelled. Mr. Dippel’s response was to ask for his premium back, since in his mind, he was not insured for 1993. The fact that both he and Mr. Garcia, as counsel, continued to press for return of the premium is further evidence of the confusion caused by the Committee’s correspondence. He argued that the affidavit of Mr. Dippel is evidence that Mr. Dippel was misled and that evidence has not been refuted.
Mr. Good argued that, in the past, the Tribunal has heard appeals that were filed beyond the “one year of filing of proof of loss” rule. Two cases that he was personally involved with were Peer and Armstrong. In both cases the appeal was filed within a year of the decision on the adjustment of the loss but beyond the one year specified in the regulation. In both cases AGRICORP did not object to the late filing. He argued that the practical time limit is one year from the time that the matter is known to the parties, in this case March 1997 at the Small Claims Court. He filed his notice of appeal within five days of that time.
Mr. Good said that the Crop Insurance Committee entertained a request for a premium refund and that lends credibility to his argument that Mr. Dippel was misled by AGRICORP. If there was a contract in effect why would the Committee even consider a premium refund request?
Mr. Good summed up his case by saying that, based on the affidavit of Mr. Dippel, which was not refuted, it is clear that Mr. Dippel was misled and the time for filing the appeal should begin from the point where the parties both understood that the issue was one of benefits under the contract of insurance. Based on this interpretation of the situation, the appeal is filed in time and should be accepted as timely and a hearing into the merits established.
The Tribunal examined the submissions made. Mr. Dippel claims he was led to believe by AGRICORP when it turned down the claim, that he had no policy at all. The evidence seems to be that the reason the claim was denied was because Mr. Dippel, his son and brother may have combined their production. AGRICORP was unable to determine the insured yield and hence the loss, if any, attributable to the appellant.
After Mr. Dippel was informed of AGRICORP’s decision, he took the position that he should get his premium back because he thought he was told he had no contract of insurance. Mr. Good produced a 1997 affidavit from Dippel alleging that he was misled into believing he had no contract of insurance and his only remedy was to claim his premium back. The affidavit has no supporting documents or reports of incidents attached to support these allegations. There was no documentation produced by Mr. Good that satisfies the Tribunal that AGRICORP specifically denied the appellant a contract of insurance. On the contrary, the materials relied on by Mr. Good, that were generated by the Crop Insurance Committee, specifically state that a contract of insurance existed and that AGRICORP had earned its premium for that insurance.
Regulation 215 specifically states there is a one-year time limit. This would mean that the one-year time limit period in this case would run from approximately February 4, 1994. Counsel for AGRICORP conceded that AGRICORP itself often allowed claims that were filed more than one year from the filing of the “Proof of Loss”. AGRICORP’s unwritten policy was that the one-year limitation would run for one year from the date that AGRICORP adjusted the claim. In this case, the one year period began to run from April 7, 1995, the date of the letter sent by the Chairman of the Crop Insurance Committee specifically denying liability. That letter also denied the request by the appellant for a premium refund. The Tribunal’s understanding of these letters emphasizes the message that not only were premium refunds denied but also benefits under the contract of insurance were denied.
By March 1997, Mr. Good was of the view that the appellants ought to have been pushing a claim for benefits before the Tribunal. Accordingly he, and counsel for AGRICORP agreed that the Small Claims Court action should be dismissed and a claim should be pursued before the Tribunal. From that point on Mr. Good was diligent in that he filed a notice of appeal by March 13, 1997. Apparently the matter was scheduled for a preliminary hearing May 7, 1997. Because of time constraints this matter was not heard at that date. After that date neither the appellant nor the commission pressed the Tribunal to reschedule a hearing.
Once an appeal is filed with the Tribunal, it is with the Tribunal to finally dispose of it, unless a panel of the Tribunal decides otherwise, the appeal is still alive. In this case, someone should have taken charge of the appeal and pressed for resolution. The onus is on the appellant, but the respondent could have brought a motion for disposal of the appeal. All parties have made a contribution to the problem. Perhaps, the Tribunal should be able to bring the matter forward in a manner similar to the status hearings of courts.
In this case, Mr. Good did not demonstrate that the 1997 notice was timely. The Tribunal finds that the appeal notice was not timely. The Tribunal finds that the statutory time limit began in February 1994 and closed February 1995 and the appeal was not filed until 1997. The Tribunal does not have the power to extend statutorily set limitation dates in crop insurance matters.
The Tribunal does not sanction the view that the parties may, by consent, extend the statutory limitation period for filing an appeal. The Tribunal makes this clear to the parties even though the evidence at this hearing was that the Tribunal has in the past entertained appeals which the parties agreed were not filed within the limitation period. In the cases mentioned, the parties also agreed that neither had objected to the Tribunal hearing these appeals.
Since the Tribunal has found that the appeal was filed beyond the time limited by the regulations, there is no need to address the second issue of whether the appeal was abandoned.
Decision and Reasons
After careful consideration of the evidence and submissions made, the Tribunal decided to grant the motion of AGRICORP and finds that the appeal was not filed within the time limit specified in the regulations and therefore the appeal is dismissed.
The reasons for this decision are:
The parties agreed at the hearing that the appeal was not filed within one year of filing of the “Proof of Loss”.
The Tribunal does not have the authority to extend the time for filing notice of a crop insurance appeal.
DATED AT Tilbury, Ontario this 2^nd^ day of August, 2000.